Law Firm Marketing Comes Into Its Own in the 21st Century
In an op-ed piece originally published in ALM's Marketing the Law Firm, Elizabeth Ann "Betiayn" Tursi asked whether law firm marketing was "so over" that it required a new name. On the contrary, if law firm marketing needs a new name, it's not because it's over—it's because the possibilities are growing so fast that it's a whole new playing field.
Tursi's article focuses primarily on the conundrums facing the in-house law firm marketer and scarcely touches on marketing practices, opportunities and payoffs. In fact, many of the ways in which law firm marketing is a "whole new ballgame" are advantageous to law firms and those who help market their services.
It was, after all, only thirty years ago that the U.S. Supreme Court struck down blanket prohibitions on attorney advertising. In the intervening years, various battles have been waged and the boundaries shifted: the end result is that new marketing opportunities from newspaper and television advertising to direct solicitations have opened up across the country. At the same time, advances in the law governing attorney marketing have been accompanied by equally—or perhaps more—significant advances in the methods and mechanisms.
Undoubtedly, the most dramatic change has come with the advent and then rapid popularization of the Internet. Just a few of the benefits to law firm marketing that have grown up through the Internet include:
- Options: After years of being stuck with yellow page advertising as costs increased and effectiveness declined, alternate approaches and an alternate audience are readily available.
- Flexibility: The digital format offers the ability to update information and marketing materials on a regular basis and nearly instantaneously, so that marketing efforts can be tested, tweaked, and tested again.
- Variety: Firm websites are just the beginning; national marketing efforts like Total Attorneys, online legal and local directories, blogs, the ability to tie in to and comment on current legal issues and new forms of networking present a smorgasbord of cost-effective marketing endeavors.
- Email: The ease of electronic communications makes it easy and relatively inexpensive to keep in touch with current and past clients and provide the added value that builds word of mouth advertising.
What's more, the opportunities are still developing; the field is unfolding as quickly now as it has over the past few years. A new generation of prospective clients has grown up online and many have never opened a telephone directory or dialed 4-1-1 to obtain a telephone number. Searches, city directories, legal directories, forum recommendations and the quality of information associated with an attorney or a firm online will drive this generation's search for legal services—along with factors that may not even be in play today.
In short, Tursi's suggestion that law firm marketing needs a new name might be right on target, but it's not because it's "over." It's because the playing field has shifted so radically and the options expanded so rapidly that it really is a whole new world. Fortunately, it's a world that allows for more varied, more efficient and more cost-effective means of reaching your future clients.
New Study Questions Assumptions about Credit Substitution
Harvard Law School lecturer Angela Littwan recently published a study regarding the long-accepted principle that low-income consumers deprived of credit card access by stricter governmental regulation would be forced to substitute "less desirable" forms of credit. What Littwan learned is interesting, and challenges many traditional assumptions about consumer borrowing.
Littwan set out to explore two commonly-held beliefs about consumer credit card use: that unavailability of credit cards would trigger substitution of other forms of credit, and that at least some of those other forms of credit were worse for consumers than credit cards. Her findings call both beliefs into question.
First, Littwan's data suggests that alternate forms of credit such as pawn shops and rent-to-own stores only partially fill the gap left when credit cards are unavailable: in other words, even where substitution occurs it will typically be more limited than credit card use. This is partially because less credit is generally available in these other forms and partially because study participants indicated that credit cards themselves could serve as a spending trigger. It certainly comes as no surprise that people with credit cards in their wallets sometimes purchase things they otherwise would not.
What does come as a bit of a surprise is Littwan's suggestion that maybe there aren't really a lot of worse credit options out there. While she supports that assertion credibly enough, an acknowledged anomaly makes its national validity somewhat questionable: the study participants all reside in Massachusetts, a state that has effectively outlawed payday loan stores.
The only form of borrowing more prevalent among Littwan's study participants than credit card use was informal borrowing from friends and family. That says something significant about the infiltration of the credit industry into the lowest of economic sectors, since study participants were drawn entirely from among subsidized housing residents and many participants relied at least in part on welfare or disability payments.
The study group was very small and further research is required. The bottom line, though, is that it appears that the tendency to substitute other forms of credit may not be as pervasive as originally believed, and that even where substitution does occur, some of the forms of credit substituted may be more consumer-friendly than credit cards.
Justices Seem Poised to Strike Down D.C. Handgun Ban, Expand Interpretation of 2nd Amendment
On March 18, the United States Supreme Court heard oral arguments in a case that may redefine the legal interpretation of the 2nd Amendment right to keep and bear arms. The D.C. Circuit Court of Appeals last year struck down the District's ban on handguns, asserting that the 2nd Amendment was intended not simply to provide for a militia but to ensure an individual's right to protect himself and his family.
Walter Dellinger, on behalf of the District, was interrupted almost immediately by the Chief Justice, who pointed to the use of the word "people" rather than the word "militia" within the amendment. The Justices raised the issue of self-protection from "hostile Indians and outlaws, wolves and bears and grizzlies" and cited Blackstone's emphasis on the importance of an individual right to self-defense.
The Chief Justice asked directly, "what is reasonable about a total ban on possession?" and analogized the total ban on handguns to a total ban on books. There were no "softball" questions during Dellinger's argument and no clear support from any corner of the Court. In addition to the two parties' arguments, the Court heard arguments from the United States as Amicus Curiae.
The United States walked a tightrope in the arguments and accompanying briefs, presenting the view that the 2nd Amendment was intended to protect a right to keep and bear arms beyond the context of the militia, but nonetheless supporting the right of the governmental entities to place restrictions on that right.
The Justices dug deep into history with their questions, revisiting not only the 1939 Miller decision but the use of similar terminology in English law and the debate over the addition of the phrase "the common defense" to the 2nd Amendment.
The issue of reasonable restrictions will become the major issue if the Supreme Court rules in favor of an individual right to keep and bear arms. State governments across the country and the federal government place varying restrictions on the types of weapons individuals can own, the circumstances under which that ownership can be curtailed, and when and where those weapons may be carried.
A full transcript and audio recording of the oral arguments is available here: District of Columbia v. Heller.
Latest Mass Breath Test Challenge Fails, Cases Move Forward
New Jersey, the latest state to see a mass of stalled DUI prosecutions due to breath test challenges, got the green light from the state Supreme Court earlier this week. A unanimous ruling deemed the Alcotest 7110 "scientifically reliable," clearing the way for as many as ten thousand stayed DUI cases to move forward. The Court had appointed a Special Master, who collected testimony from expert witnesses over a period of four months and concluded that the test was scientifically reliable.
The state claims that the device is more reliable and accurate than conventional breathalyzer test machines because no adjustment is required. In fact, machines theoretically need to be calibrated only once a year, although the Special Master recommended calibration every six months.
Use of past breath test equipment has required training and certification to ensure that test results weren't skewed or tainted by the operator, but the Alcotest requires no such adjustment. A New Jersey State Police representative reportedly told the New York Times, "Now there's nothing to operate. Everything is internal within the machine. You just hand the hose to the individual. There's no opportunity to fudge the results or negate the reading."
Of course, the elimination of those opportunities to go wrong also means the elimination of many possible points of challenge to individual breath test results in specific cases.
Although the general consensus seems to be that the new breath test will be more difficult to challenge than the old-fashioned model, there were some victories for the defense in the court's ruling. Unlike the state of Florida, which went to great lengths to prevent future challenges on the basis of source code disclosures, the New Jersey Supreme Court specifically indicated that programming information must be made available to defense attorneys, along with training in the use of the device and the opportunity to purchase a unit.
For the past two years, New Jersey law enforcement agencies have reverted to the use of traditional breath test machines as this challenge worked its way through the court system. Now that the issue has been resolved and the stalled cases are moving forward, police are expected to resume use of the Alcotest device immediately. Only a handful of states currently use the Alcotest device, which costs $13,500 per unit. However, if predictions about the increased difficulty of challenging breath test results obtained with this device hold true, we may see that change.
Is Alimony Due for an Overhaul?
Of all of the emotionally-charged and often highly discretionary issues involved in a divorce case, alimony (or spousal maintenance) may be the least consistent. Some states, like New York, allow for either permanent or temporary maintenance and allow the court broad discretion in determining the amount and duration of those payments. Other states, like Indiana, have eliminated the concept of traditional alimony altogether. In Indiana, spousal maintenance is granted only when necessary to allow a spouse to transition to independence, and the payment period may not exceed three years.
The concept of alimony and the rough framework for the current systems developed in a time when the economics of marriage were quite a bit different than they are today. More traditional roles governed most marriages, and the wife was often entirely without income or separate property. There was also typically a great disparity in the earning capacity of the spouses.
Those circumstances have changed in many ways, and some argue that the concept of alimony is simply obsolete. But, like most legal issues, the reality isn't simple at all. Disparities still exist, transitions still occur, and the elimination of all forms of alimony and maintenance would undoubtedly cause hardships and injustices. Thus, many states have simply left existing laws in place, leaving it to judges to sort out what's "fair" in a given case and providing varying levels of direction on how to make that determination.
It seems, however, that the issue has ripened across the country.
- Massachusetts lawmakers are considering a bill that would limit the duration of alimony payments to 12 years or one-half the duration of the marriage, whichever was less.
- Nevada legislators may limit the discretion of judges in awarding alimony by promulgating specific guidelines to determine when alimony is appropriate in a divorce case.
- A Florida ballot initiative seeks to amend the state Constitution to abolish lifetime alimony awards.
- In New York, a lobbying effort is underway to standardize alimony awards.
While some of these measures are more reasonably grounded than others—the idea of a Constitutional amendment to address the allocation of funds in a divorce case seems a bit of a stretch—the disparity among the states and the number of statutes and initiatives currently under consideration across the country clearly indicates that the system is in flux and warrants reassessment.
Kevin's Corner
Practice Management Tip of the Month:
Effective Email Communications
"Most of us remember the logistical difficulties and delays once associated with written communications when time was of the essence. And yet, as attorneys, getting the specifics in writing is often critical. Those who have been practicing for many years may remember the appearance of the fax machine and the change it made in law office communications.
"For those relatively new to the practice, fax machines are old news and even email communications may be taken in stride. Email provides excellent opportunities for enhanced client communication, speed of transfer of information and requests, and any number of other new efficiencies.
"However, it's not without pitfalls—pitfalls that might not be immediately visible to those accustomed to relying on electronic communications. Ellen Freedman has put together an insightful overview of the pitfalls and considerations surrounding the use of email in business communications.
"One of Freedman's key warnings is equally obvious and easy to overlook at the speed of email communications: don't put anything into an email that you wouldn't put on firm letterhead. While the format is quicker and seems more casual, you're creating a written record and have to be conscious of that every time you pop open your email program on the job. Those records will be around for a long time to come; they're easier and less expensive to store than hard-copy communications and generally easier to search through and retrieve if reason arises.
"And, of course, there are risks beyond what we put into the content of our emails. Confidentiality issues arise simply from the form of the communication. Those can be managed, for the most part, through disclaimers and confidentiality notices, by password protecting especially sensitive information and including confidential language in attached documents rather than the body of the email, but we must be ever-conscious of the risks created by putting electronic documents in the hands of our clients.
"One of the greatest pitfalls of email—whether in the business world or in personal communications—is the ease of forwarding. It's become commonplace to simply send along an email to friends, family and colleagues for comment, review, or just as an update…and that simple act of clicking 'forward' can destroy privilege.
"That's why educating clients is an important part of using electronic communications securely and effectively. It's useful-even imperative-to have an email policy for the office that ensures careful thought and adequate protections for client privacy and privilege, but it's equally important that clients receiving information and updates electronically understand the risks associated with those communications."
- Kevin Chern is President of Total Attorneys and a Law Practice Management Consultant to more than 700 law firms throughout the country.
Proposed Mental Health Coverage Bill Draws Mixed Reactions
Approximately half of U.S. states currently have legislation requiring that health insurance carriers provide coverage for certain mental health and/or addictions services.
Those provisions vary from state to state; in some states mental health issues must be covered under the same terms as other medical conditions, while in others the coverage requirements are lower. The precise listing of conditions that must be covered varies from state to state as well.
Pending federal legislation would impose minimum requirements across the board. The Paul Wellstone Mental Health and Addiction Equity Act of 2008, passed by the House on March 5, 2008 and currently on the Senate calendar, would require coverage of certain categories of mental health and substance dependence problems.
The list is more comprehensive than those set forth by many state statutes and includes less serious mental health conditions along with major illnesses. The Act would also prohibit discrimination or denial of coverage on the basis of genetic tendency or predisposition to medical conditions.
While some states have protested that the added burden of the federal provisions will strain budgets unnecessarily in view of existing state provisions, the Act does contain one very important provision: it explicitly states that the legislation has no effect on existing state law.
That is, the federal statute would not create a pre-emption issue that limited the ability of states to provide greater protections and enforce more stringent requirements. The statute would supersede state law only in the event of a direct conflict.
In view of three recent pre-emption decisions by the U.S. Supreme Court, including one that effectively eliminated state tort actions for defective medical devices that had received FDA pre-market approval, this provision is an important one.
Still, it's unclear how the Act, were it to become law, would interact with those existing laws. Some states have expressed concern about the gaps that might be created by the fact that the federal law would apply only to companies with 50 or more employees, and that the extension of the mandate to less serious (and more common) mental health conditions might negatively impact medical insurance rates.
The greatest benefits, of course, would be to those suffering from mental health or addictions issues in the more than twenty states that do not currently require coverage of those issues.
Same Sex Couple Seeks Missouri Annulment
In the wake of a Rhode Island decision denying a divorce to a same-sex couple married in Massachusetts, a Missouri woman who also married her same-sex partner in Massachusetts is now seeking an annulment in the Missouri courts.
Because the case is proceeding as an annulment rather than a divorce, the precedential impact of the court's ruling may be more limited than that predicted as the Rhode Island case worked its way through the court last year, but with the treatment of out-of-state same-sex marriages still developing across the country, it's a case worth watching.
Your Sponsor Advocate Team
Organizing Your Contacts
The sponsor advocate team often gets questions from attorneys about how they can best organize contacts in their account.
The "Custom Date Range" feature in the Admin View of your TA account is a great way to organize your contacts.
Here's what you'll need to do.
-
After logging in to your account with your username and password, you will automatically be taken to your account's Attorney View.
Simply click on the "Go to Admin View" button at the top of the default Attorney View page. -
This will automatically take you to the "Leads" tab in the Admin View, where you can manage your contacts in the "Manage Leads" section on this page.
Within the "Manage Leads" section, you will see a "This Week" dropdown. Click on this dropdown and select "Custom Date Range." -
From here, plug in the dates that you want to separate out your contacts by in the "(start)" and "(end)" boxes under this dropdown.
For example, if you want to review your contacts for March 2008, simply enter 03/01/2008 in the "(start)" box and then 03/31/2008 in the "(end)" box. -
Click "Go" and watch as your contacts are quickly organized within the custom date range that you selected, with your most recent contacts at the top and your older contacts for March at the bottom.
As you'll see, the "Custom Date Range" feature in the "Admin View" of your TA account is a quick and effective means to organize your contacts.
If you have any questions about this process, feel free to contact Senior Sponsor Advocate Tressa DiGiulio and her sponsor advocate team at 312-753-6911 or support@totalattorneys.com.
As always, Tressa and sponsor advocates Beth Bond and Susaan Jamshidi are more than glad to help out in any way possible.
